TDL v TDK

• Jurisdiction: Singapore
• Judge: Valerie Thean JC
• Judgment Date: 01 August 2017
• Neutral Citation: [2017] SGHCF 20
• Court: High Court (Singapore)
• Docket Number: HCF/Originating Summons No 36 of 2016
• Published date: 30 March 2018
• Year: 2017
• Hearing Date: 30 March 2017,06 April 2017,18 April 2017
• Plaintiff Counsel: Dhanwant Singh (S K Kumar Law Practice LLP)
• Defendant Counsel: Anuradha s/o Krishan Chand Sharma (Winchester Law LLC)
• Subject Matter: Civil Procedure,Appeals,Extension of Time
• Citation: [2017] SGHCF 20

Valerie Thean JC: Introduction

This was an application for an extension of time for leave to appeal against the decision of a District Judge (“the Judge”) on ancillary matters in divorce proceedings between the applicant (the husband) and the respondent (the wife). The order on ancillary matters was made on 15 July 2016. Time for the filing of a notice of appeal expired on 29 July 2016. The respondent obtained Final Judgment on 1 August 2016.

The Judge’s decision included an order that the applicant should transfer one of the properties jointly held by parties (“the Miltonia Property”) to the respondent. The applicant has neither complied with that order nor applied for a stay of execution of that order. In the meanwhile, the respondent is living in rented premises while paying the mortgage and expenses for the Miltonia Property.

On 30 March 2017, I granted the applicant an extension of time, subject to the condition that he was to execute the transfer of the Miltonia Property to the respondent within stipulated timeframes (“the Condition”). The net value of the Miltonia Property accounted for about 17% of the asset pool. The order was made on the premise that, as the Judge’s property division orders concerned a much larger pool of assets, any appellate intervention regarding the property division would proceed on the basis that the transfer of the Miltonia Property had been effected. The applicant did not comply with the Condition. On 6 April 2017, after seeing parties, I granted a further extension of time as requested by counsel for the applicant, Mr Dhanwant Singh (“Mr Singh”). Again, the Condition was not complied with, and again, Mr Singh applied by letter for a further court appointment. I saw parties again on 18 April 2017 and decided not to grant any further extension. The applicant appeals against this decision of 18 April 2017.

Principles for an extension of time to appeal

The principles for granting an extension of time are not in dispute. As stated by the Court of Appeal in Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757 (“Lee Hsien Loong”) at [18] (cited recently in Werner Samuel Vuillemin v Oversea-Chinese Banking Corp Ltd [2017] 3 SLR 501 at [15]), four factors are to be considered: the length of the delay; the reasons for the delay; the chances of the appeal succeeding if the extension of time were granted; and the prejudice caused to the would-be respondent if an extension of time were granted.

The Court of Appeal in Lee Hsien Loong also noted that, in the context of appeals, the overriding concern is that there should be finality (at [33]).

Decision and reasons

Having considered the four factors listed above, I was of the view that the applicant’s chances of succeeding in his intended appeal was not without any prospect of success. Nevertheless, given the length of the applicant’s delay, the reasons for such delay and the prejudice that would be caused to the respondent, I decided that it would not be appropriate to grant a further extension of time. I shall address each of the four factors in turn, starting with the chances of the appeal succeeding.

Chances of appeal succeeding

In considering the merits of the appeal, the court may adopt a very low standard. Lee Hsien Loong at [19] enjoined the court to consider whether the appeal is “hopeless”, citing Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 3 SLR(R) 355 at [43]:

As to the question of merits, it is not for the court at this stage to go into a full-scale examination of the issues involved. Neither is it necessary for the applicant to show that he will succeed in the appeal. The threshold is lower: the test is, is the appeal hopeless? … Unless one can say that there are no prospects of the applicant succeeding on the appeal, this is a factor which ought to be considered to be neutral rather than against him.

In the present case, the applicant intended to appeal against the following ancillary orders made by the Judge: that the respondent receives care and control of the son; that the respondent receives a 40% share of the sale proceeds of the matrimonial flat; that the applicant transfers all his interests in the Miltonia Property to the respondent for no cash consideration; that the respondent keeps her CPF monies, gold ornaments, other precious metals and family heirlooms to which the applicant had contributed; that the respondent transfers her interests in the matrimonial properties in the US and India to the applicant, but that he bears all fees relating to the transfer of the properties; that the applicant pays maintenance of $1,400 per month (subsequently varied to $1,000 per month from April 2017) for the son; and that the applicant pays the respondent the costs of the proceedings.

These orders fall into these categories: the order for the care and control of the son; the order of maintenance for the son; the orders as to the division of matrimonial assets; and costs. Under s 137(2) of the Women’s Charter (Cap 353, 2009 Rev Ed), no appeal may lie purely on the issue of costs. I therefore considered the chances of the appeal succeeding in relation to the other categories of orders which the applicant intended to appeal.

There is little merit in the applicant’s appeal against the order that the respondent receive sole care and control of the son. He has not been involved in the son’s life. The son, on his part, furnished a written statement that he wanted nothing to do with the applicant.¹

There is also little merit in the applicant’s appeal against the order that he should pay $1,400 per month in maintenance for the son, which sum was reduced to $1,000 by the Judge with effect from April 2017. The applicant contends only that “at the time of the [ancillary matters] hearing, [he] was unemployed”, and that the part-time job that he found thereafter provides an income that is less than double the sum of $1,400.² The applicant accepted that the “Family Court has on 29 March 2017, revised the maintenance to $1,000 commencing from April 2017”, but submitted that the “Court has no powers to revoke the earlier maintenance order or to back-date the present variation order to July 2016.”³ By this, the applicant appeared to suggest that the variation of the maintenance order on 29 March 2017 was insufficient to address any prejudice he allegedly suffered by virtue of having to pay maintenance in the sum of $1,400 prior to April 2017. However, in his submissions, the applicant does not refer to any evidence to show that his income is insufficient to provide either $1,000 or the earlier sum of $1,400 in maintenance for the son. Further, there are inconsistencies in the applicant’s evidence on his employment.

Regarding the division of matrimonial assets, the applicant made a brief and general submission as follows:⁴

On the question of the matrimonial flat and the [Miltonia Property], he has made substantial contributions towards their acquisition and the award are not reflective of his direct and indirect contributions. The transfer of the USA and India properties to [him] are not significant or adequate. The reasons for [him] not receiving any award in [the Miltonia Property] is unclear despite [him] having made significant contributions towards its acquisition.

Looking at his contention with reference to the list of matrimonial assets set out in the parties’ Ancillary Matters Fact and Position Sheets, and using the applicant’s values for the Miltonia Property and land in India and the USA, the Judge appeared to have awarded the applicant 59% of the matrimonial assets:

Asset	Net Value	Husband’s Share (Value)	Wife’s Share (Value)
Matrimonial Flat	$540,000	60% ($324,000)	40% ($216,000)
Miltonia Property	$158,000	0% ($0)	100% ($158,000)
Lands in India	$208,000	100% ($208,000)	0% ($0)
Lands in USA	$12,000	100% ($12,000)	0% ($0)
Total	$918,000	59% ($544,000)	41% ($374,000)

This was a 24-year marriage, and the respondent, aside from contributing financially, was the primary caregiver to the children for much of the marriage while the applicant worked overseas. It was not clear that there was merit in the applicant’s appeal on the overall division of the assets.

Nevertheless, the test being whether the appeal is hopeless (see [7] above), the threshold for this factor was a very low one. While it was not clear that the applicant’s intended appeal had merit, it could not be said that the appeal was hopeless. An appeal would require detailed analysis of the range of factors that a court must consider in ordering the division of matrimonial assets under s 112(2) of the Women’s Charter. In addition to challenging the global allocation of 59% to the applicant, the applicant may also have appealed against the individual orders made in respect of the various properties within the pool of matrimonial assets.

In view of the above, it could not be said that the applicant had no prospects at all of succeeding upon appeal. The chances of his appeal succeeding were thus a neutral factor (see Lee Hsien Loong at [19]). However, this neutral factor was to be balanced against the other three factors, all of which weighed against the applicant. I turn now to the length of the delay.

Length of delay Procedural history leading to the present application

Prior to bringing the present application, the applicant had filed a prior application (OSN 20/2016) for an extension of time to appeal against the Judge’s orders on 8 August 2016. This was 10 days after the time period permitted for filing a notice of appeal against the Judge’s ancillary orders had expired on 29 July 2016.

OSN 20/2016 was not served at the proper address. The court directed the applicant to rectify the error and to...